Next story in Countdown with Keith Olbermann

KEITH OLBERMANN, HOST (voice-over): Which of these stories will you be talking about tomorrow?

Prop 8 tossed. The bipartisan lawsuit to overturn the 2008 ballot initiative which repealed same sex marriage in California is itself ruled unconstitutional by a federal court. The reaction, the political implications, and the way forward as the case will doubtless head to the Supreme Court.

Tonight, we will bring you again my 2008 “Special Comment” on Prop 8 and love.

The bitter tea of General Palin. Tea Party favorites lose Republican primaries in Michigan, in Missouri, and in the pet project, the nomination for the Senate from Kansas.

The case of the defense in Perry v. Schwarzenegger began to look during closing arguments, that‘s when the defense attorney, Charles Cooper, said that the case was actually about irresponsible pro-creation. It turned, U.S. district court judge, Vaughn Walker, described that as, quote, “Simply some rational pulled out of thin air.”

In our fifth story on the COUNTDOWN: Perhaps that was the moment supporters began to believe Perry would win Perry v. Schwarzenegger. But today was the moment Perry did.

And as a consequence, California‘s Prop 8, a ballot measure that overturned a law permitting same-sex marriage was ruled unconstitutional and the law restored, although not immediately. The ultimate results here are yet to be seen. But it is victory tonight for the two couples which launched the legal battle to challenge Proposition 8, claiming that the ban had violated their civil rights. Their case argued in court by former U.S. solicitor general, Ted Olson, as well as David Boies, bringing together the two litigators best known for representing George W. Bush and Al Gore on the opposing sides of the 2000 presidential election recount. They‘ll be joining Rachael Maddow at the top of the hour.

Meanwhile, the original defendants in the case, California Attorney General Jerry Brown and Governor Schwarzenegger, the Schwarzenegger in Perry v. Schwarzenegger, refused to support Proposition 8 in court. That left it to the group that put Prop 8 on the ballot to step in.

The defense team called only two witnesses, claiming that Supreme Court precedent was on their side, arguing that redefining marriage would weaken it and that traditional marriage, they said, was best for raising children.

Judge Walker is saying that evidence from the trial showed that same-sex parents and opposite-sex parents are equal quality and that Proposition 8 does not make it more likely that opposite sex couples will marry and raise children. Judge Walker also saying that Prop 8 violates the U.S. constitutional guarantee of equal protection under the law by treating same sex couples differently without a sufficient legal reason. “The time has passed,” he said, “when the genders were seen as having distinct roles in society and in marriage. Gender no longer forms an essential part of marriage. Marriage under law is a union of equals.”

Governor Schwarzenegger, the non-defending original defendant, is saying tonight in a statement, “This decision affirms the full legal protections and safeguards I believe everyone deserves.” Adding that “Today‘s decision is by no means California‘s first milestone, nor our last, on America‘s road to equality and freedom for all people.”

Attorney General Brown of California saying, “Judge Walker came to the same conclusion I did when I declined to defend it: Proposition 8 violates the equal protection guarantee of the 14th Amendment of the United States Constitution.”

A minor victory for the defense team, however, primarily because its lawyers knew they were likely to lose. In advance to the decision, they filed papers asking the judge for an immediate stay if they lost. Judge Vaughn Walker agreeing to put his ruling on hold, at least for a few days, to consider arguments on whether Proposition 8 will continue to be enforce during the appeals process or ended immediately—a move that would allow county clerks to begin issuing marriage licenses to same-sex couples nearly immediately.

First, let‘s discuss the ruling in the case where it‘s likely headed in court with Lisa Blatt, Supreme Court appellate attorney who has argued before the nation‘s highest court 28 times and winning all but once.

Thanks for your time.

LISA BLATT, SUPREME COURT APPELLATE ATTY.: Thanks, Keith.

OLBERMANN: Firstly, Prop 8 overturned but not yet. For those intending to rent tuxes, how does this play out in the immediate future?

BLATT: Well, I think it‘s clearly a resounding victory for the gay rights movement and it is a cause for celebration. But I do think that the district court will enter a stay. And if the district court doesn‘t do it, then the 9th Circuit would. And I think both courts are likely to want to enter a stay to keep that issue away from the Supreme Court for now.

OLBERMANN: And, therefore, what happens relative to the Supreme Court? What happens to the prospect of same-sex marriages being resumed in California?

BLATT: Well, I think it will—it will go straight to the 9th Circuit. And it will probably and most likely be affirmed by the 9th Circuit. And then the proponents of Proposition 8 will most certainly try to get the Supreme Court to overturn that. And if the Supreme Court declines review, then there will be same sex marriage in California. But I think that there is a highly, very significant chance the Supreme Court will take the case if the 9th circuit affirms.

OLBERMANN: Will there be a stay that will carry through the circuit courts handling of this, as you suggest it‘s affirming of this decision?

BLATT: I think so, because the proponents of Proposition 8 are not going to just give up. They will continue to fight this all the way to the Supreme Court. And I don‘t think the trial court or the 9th Circuit wants the Supreme Court to reach the issue of a stay. So, I think the lower courts will just enter the stay to keep the status quo.

But, it will proceed, I would think, expeditiously in the 9th Circuit.

The 9th Circuit will not sit on this. They will act quickly on it.

OLBERMANN: At the Aspen Ideas Festival, Mr. Boies described how he and Mr. Olsen had managed to sway all the defense witnesses, to the extent that the defense witnesses, they were all opponents of gay marriage, largely dropped off the witness list or actually wound up saying that gay marriage should be recognized once they were deposed or cross-examined by Boies or by Olson.

What does that tell us about the merits of the case? And what does that tell us about when we presume it gets to the court, what the case is going to look like to the Supreme Court? And what—how the Supreme Court could possibly—what the—what the court would hear?

BLATT: Well, I think it says a lot about the evidentiary support.

The proponents of Proposition 8 did a terrible job putting on evidence. They promised a parade of witnesses and then they all dropped out, as you said. And they came up with two. And the district court found those two witnesses both unqualified and not credible.

And I think that‘s not the real problem. The real problem that the proponents have, and this is what the case is really about, is does the state—or did the voters of California have the right to declare that same-sex marriages is morally inferior to sex between—I mean, to marriage between a man and woman? And that‘s what‘s going to be the issue before the Supreme Court, whether the state has any legitimate interest in telling homosexuals whether they have a right to marry or not.

And it will not be based on evidentiary support about what‘s best for the child or what‘s best for society, because I don‘t think the proponents put forth any evidence on that. In fact, all the evidence went against the state on this. The trial court specifically found in 80 findings of fact, and one of them was that children raised by same-sex couples are as healthy and as successful and well-adjusted as those raised by heterosexual couples. And there‘s finding after finding like that.

So, the proponents aren‘t going to have any evidence to go to the Supreme Court with.

OLBERMANN: So, what they would then do, I presume, would be to change approach entirely and make this entirely about the right of ballot props to be—to be initiated?

BLATT: Well, it will be—the right about whether the Constitution can regulate morality. And I think what the district court was saying was that just declaring moral superiority is not enough when it discriminates unless the state has a legitimate interest. And this clearly, on its face, discriminates against sexual orientation.

And the only question before the Supreme Court will be: is that rational? Does either a state government or the voters of a state have the right under the Constitution to do that, to make that kind of moral judgment?

OLBERMANN: Supreme Court appellate attorney, Lisa Blatt—thank you for your time and insight tonight. It was truly insightful. We appreciate it.

BLATT: Thank you.

OLBERMANN: For more on the political fallout of today‘s ruling, let‘s bring in Joe Solmonese, president of the Human Rights Campaign.

I mean, he spoke to the dignity of same-sex couples. He spoke to the fact that sexual orientation is an immutable human characteristic. He spoke—as Lisa mentioned—to the strength and the commitment that we have to raising our children.

But most important is something I think that we‘ve all known all along, he spoke to the fact that the denial of marriage equality to same-sex couples is not just unconstitutional, it is harmful to same-sex couples and their families and that to convey or to allow same-sex couples to enter into marriage does absolutely nothing—not one thing—to impact anybody else‘s lives, particularly heterosexual people who are married.

OLBERMANN: Did Judge Walker reaffirm your assertion and the assertion of the HRC all this time that this is a civil rights issue?

SOLMONESE: Absolutely. Absolutely. I mean, the strength and the power of his conclusions today was historic. And, certainly, as Lisa mentioned, sets an incredibly strong precedent moving forward.

But it is a fundamental civil rights issue that we have been fighting for for sometime now. And again, you know, this notion that our opposition has put forward that allowing same-sex couples to celebrate and to enjoy full marriage equality and to, therefore, be in a position to make decisions about our health care and our welfare, of our loved ones and our children, particularly at times when we are at our most vulnerable is something that seems so fundamentally obvious to so many of us. But, obviously, an idea that we need to continue to push forward as this case continues to make its way towards the Supreme Court.

OLBERMANN: What I drew, Joe, from Lisa Blatt‘s commentary in our conversation earlier was that this is essentially being fast-tracked into the appellate court and then almost presumably immediately to the Supreme Court—as immediately as the Supreme Court takes anything.

What are your—what do you infer from the decision today about how this will ultimately end up with the Supreme Court?

SOLMONESE: Well, I think the strength of the decision and the sweeping scope of the decision has a lot to do with it. And so, you know, I‘m cautiously optimistic. But I continue to maintain that there are a number of roads forward towards marriage equality in this country.

There is, of course, the route throughout courts as we‘re talking about today. But there continue to be legislative opportunities. I think, as an organization and as a movement, we need to continue to be steadfast to make sure that we in no way step back from that, whether it‘s the opportunity to elect a pro-marriage legislature in New York or a pro-marriage governor in Minnesota, or just the work of really changing the hearts and minds of the American people to continue to move them in the direction of supporting marriage equality.

OLBERMANN: Not to be grotesque about this, but also, aren‘t the actuarial tables in your favor? Is there not with every passing generation and each demographic group that we look at, the farther, the younger you get, the less sense any of this makes to, you know, 25-year-olds, 20-year-olds, 15-year-olds, who are going, what is the big deal here?

SOLMONESE: Yes, unquestionably. I think the statistic is if you‘re under 50, you support marriage equality by 54 percent. If you‘re over 50, you support it by 34 percent. So, yes, time is on our side here. And we, you know, we continue to move in that direction.

But at every level, generationally, I think slowly but surely, we are moving the meter of public support in the direction of supporting, you know, some measure of marriage, some measure of same-sex recognition and ultimately, marriage equality.

OLBERMANN: Joe Solmonese, president of the Human Rights Campaign, such as they are, my congratulations you to and my thanks for your time tonight.

SOLMONESE: Thanks, Keith.

OLBERMANN: I addressed this topic at length from the 10th of November, 2008, after Prop 8 passed. At the end of this news hour, we will again bring you that “Special Comment,” “Prop 8: A Question of Love.”

We‘ll continue here in a moment.

(COMMERCIAL BREAK)

OLBERMANN: Her handpicked Tea Party choice for the Republican Senate nomination in Kansas for whom she did robocalls got smoked in a primary. Melissa Harris-Lacewell on a bad night for the TP-ers.

The mayor of New York endorses religious freedom, the Constitution and American history at a mosque two blocks from ground zero. Russell Simmons joins me.

OLBERMANN: This April, a “New York Times” poll of tea partiers found that 84 percent of them claimed the Tea Party‘s views general reflect the views of most Americans.

Tonight, our fourth story on the COUNTDOWN: that claim is being put to the test for the first time this year as CNN last night‘s primary election results from around the country turns out that views of the Tea Party may not even reflect the views of most Republicans. In race after race, the Tea Party wing of the Republican Party was unable to win over even the Republican wing of the Republican Party.

Congressman Todd Tiahrt, wanted to become the Republican Party nominee for senator from Kansas, he went into the race with support from the Tea Party and Sarah Palin, who posted on Facebook on Monday night, reminding the good people of Kansas to vote on Tuesday for Todd Tiahrt.

The guy the good people of Kansas actually voted for, Jerry Moran, had his own endorsement, from a more moderate Republican named John McCain.

Another business as usual Republican won tonight in Missouri, Congressman Roy Blunt, winning his party‘s nomination for Senate against Tea Party candidate, State Senator Chuck Purgason, whose anti-tax, anti-government campaign drew 13 percent of the vote.

Then there was Rick Snyder, running for the GOP nomination for governor of Michigan. Snyder ran promising—get this—to reach across the aisle. You know, where the Democrats are. He not only beat conservative Republican terrorism scaremonger, Congressman Pete Hoekstra, but he also beat and placed in third, Tea Party candidate Mike Cox, who won nearly 24 percent of the primary vote, despite campaigning against Hoekstra for sitting out on a vote repealing health care reform.

Not that last night was a total lost for the Tea Party. Some of their candidates won. And they had a big night in Missouri, running not against the candidate, but against health care reform. By a landslide margin of nearly 3-1, Missouri voters passed a referendum that would protect them from having health care insurance. Yes, literally.

The referendum would repeal the portion of the president‘s health care reform plan that requires individuals to carry health insurance if it had the force of law which it does not, which was kind of decided during the Civil War.

Still in Kansas, Tea Party candidate David Powell also ran against health care reform and his campaign to become state insurance commissioner. He lost to incumbent Sandy Praeger, who has already begun implementing health care reform.

MELISSA HARRIS-LACEWELL, MSNBC CONTRIBUTOR: Nice to see you. How are you?

OLBERMANN: It‘s a busy day.

HARRIS-LACEWELL: It is. It‘s a good one.

OLBERMANN: I would agree with you on that.

On the subject of what happened yesterday, what happened yesterday?

HARRIS-LACEWELL: Well, you know, I think what we saw with the Tea Party or what we‘re seeing, is precisely what you should expect from a party out of power. Look, Democrats went through the same sort of anxieties and stresses in the 1980s.

When a party loses the White House, what it tends to do in the midterm is pull to the extreme. We‘ve seen it happen over and over again. And it‘s typically because the party is trying to figure out what its voice is. It‘s trying to figure out what it is that it has to offer. So, it pulls to the extreme.

But then what it finds out is, like all of, you know, all of us political science professors, teach sort of in the first week of class. We teach the normal curve. And it‘s about the distribution of American voters and it explains why we end up with a two-party system that‘s really pretty moderate, because most people‘s opinions are kind of towards the middle with just a few people, often very vocal people, out on the edges.

But if you want to win an election, you got to get a majority of the people—which always means moving into the center of that normal curve.

OLBERMANN: But, on the other hand, votes for moderation, could they still wind up as votes for extremism because individual candidates might be more moderate? But do they not have some obligation to support what is increasingly extreme party leadership, even if it‘s just moving slightly further to one side?

HARRIS-LACEWELL: I don‘t know. I got to tell you, I know just enough about southern politics to know that those blue dog Democrats have definitely demonstrated that simply winning in a party does not necessarily mean needing to support that party.

You know, in a certain way, I have kind of a warm and fuzzy feeling

for the GOP tonight. You know, it‘s almost like they fought for the middle

or at least the middle as it exists on the American right in a political system that‘s already pretty much to the right and not very far to the center. But within that—definitely a very moderate evening.

OLBERMANN: But in that—in some sense, isn‘t that bad news for Democrats? I mean, wouldn‘t they not have preferred more? I mean, don‘t they need more Rand Pauls and more Sharron Angle? Give Sharron Angle an hour of television time each night to see just how crazy these people actually are?

HARRIS-LACEWELL: I think it depends on whether or not we are Democrats first or we are Americans first.

OLBERMANN: I know.

HARRIS-LACEWELL: And the fact is, you know—I know. It‘s that whole like: do I love my country?

The fact is, sure, you‘d rather run against someone who can easily be framed as fringe. But as an American, you always want to kind of hedge your bets that no matter who wins, you get someone in there who cares fundamentally about their constituency, who will be concerned with the issues that people in that community are concerned about, and who will care about deliberation and do crazy things like reach across the aisle.

OLBERMANN: Yes.

HARRIS-LACEWELL: So, the fact is as an American, you have to be pleased with a relative moderation. And you have to be happy with—I don‘t know, Kansas voters. Remember, we used to ask—what‘s the matter with Kansas? Who knows, maybe they‘ll be redeemed in the end.

OLBERMANN: But, where does this—how did last night‘s results impact this spectrum of Republican flirting with Tea Party, and Tea Party trying to be chased by Republican?

HARRIS-LACEWELL: Yes, I mean, definitely that relationship is still a GOP-Tea Party relationship. For the most part, the Tea Party has not demonstrated that it‘s truly a third way. It hasn‘t indicated that it is something that can sort of stand to bring in disaffected Democrats, independents who truly want a different voice. You know, for the most part, it has still framed itself as a movement of anxiety and a movement of reaction over and against the 2008 elections. So, it‘s still not clear that they can operate as a party.

What a party does—when you know you have a party, besides the good music, is that parties get candidates elected. And until they can demonstrate they can actually get candidates elected, they‘re not a party. They‘re certainly not a movement yet. But they are a voice that we have to continue to take seriously because they represent some portion of the American public that does have extreme anxiety about the 2008 election results.

OLBERMANN: Right now, it‘s just a series of meetings of people wearing hats.

Melissa Harris-Lacewell—thank you kindly.

HARRIS-LACEWELL: Thanks.

OLBERMANN: The reverse of “not in my backyard.” Russell Simmons on building a mosque near ground zero, near his home—ahead.

OLBERMANN: Opposing those who try to deny us religious freedom by denying those religious freedom, so-called ground zero mosque story, with Russell Simmons.

First, the sanity break—beginning now with my Tweet of the Day, but with Glenn Beck‘s.

One of his favorite tweets, right above the one from Jake Tapper, from @MalevolentFreedom, quote, “White nationalist message board—gives the address—embrace white culture at Glenn Beck white pride. Beck, WPWWW.”

Since the Stop Beck Web site discovered it, Beck has since erased it. He should erase his career because when it ends, it‘s going to end with something like that.

Among his favorite tweets, a link to a white nationalist news and forum.

OK. Now, the sanity break. Make mine a double.

Let‘s play “Oddball.”

(MUSIC)

OLBERMANN: We begin in Japan‘s Mazda Stadium with a matchup between the Yokohama Bay Stars and your home standing Hiroshima Carp, there‘s the 1-1 pitch to Shuichi Murata. Damn, it‘s deep and I don‘t think it‘s playable. The Masato Akamatsu does think it‘s playable. Full extension. Somebody‘s been watching too much Major League 2.

The amazing defensive effort was not enough though as Hiroshima still fell to the Bay Stars six to five after Yokohama shortstop, Dr. Octopus, made several great defensive plays as well. Wow.

To the Bronx, New Yankees Stadium. We join Alex Rodriguez on his quest for 600th home run. There is a windup and the pitch. A swing and a drive and it could be, might—oh, what‘s this? New Toronto (ph) free agent signing Masato Akamatsu—takes away history. Two great catches in two different countries in consecutive days. What were the odds?

OLBERMANN: The Manhattan Mosque, the White House is staying at arm‘s length on this issue, so is New York‘s senior senator and other Democratic members of Congress. In our third story on the COUNTDOWN, it falls upon the city‘s Republican mayor to defend religious freedom and the Constitution and acknowledge the pain still felt nine years after 9/11. “We would betray our values and play into our enemies‘ hands if we were to treat Muslims differently than anyone else.” Mike Bloomberg‘s eloquent speech. In a moment, Russell Simmons will join me.

The planned mosque and community center cleared its last hurdle. Believe it or not, many have been led to believe it is actually at Ground Zero rather than, as you see, two blocks away. Already, Pat Robertson‘s Astroturf group American Center for Law and Justice filed legal action against the decision to knock the buildings down that are there. With the Statue of Liberty featured prominently in the background, though, Mayor Bloomberg addressed his city.

(BEGIN VIDEO CLIP)

MAYOR MICHAEL BLOOMBERG (I), NEW YORK: Whatever you may think of the proposed mosque and community center, lost in the heat of the debate has been a basic question: should government attempt to deny private citizens the right to build a house of worship on private property based on their particular religion? That may happen in other countries. But we should never allow it to happen here.

This nation was founded on the principle that the government must never choose between religions or favor one over another. The World Trade Center site will forever hold a special place in our city, in our hearts. But we would be untrue to the best part of ourselves and who we are as New Yorkers and Americans if we said no to a mosque in Lower Manhattan.

Let us not forget that Muslims were among those murdered on 9/11 and that our Muslim neighbors grieved with us as New Yorkers and as Americans. We would betray our values and play into our enemies‘ hands if we were to treat Muslims differently than anyone else.

In fact, to cave to popular sentiment would be to hand a victory to the terrorists. And we should not stand for that.

For that reason, I believe that this is an important test of the separation of church and state as we may see in our life times—as important a test. And it is critically important that we get it right.

On September 11th, 2001, thousands of first responders heroically rushed to the scene and saved tens of thousands of lives. More than 400 of those first responders did not make it out alive. In rushing into those burning buildings, not one of them asked, what God do you pray to? What beliefs do you hold?

The attack was an act of war and our first responders defended not only our city but our country and our Constitution. We do not honor their lives by denying the very constitutional rights they died protecting. We honor their lives by defending those rights and the freedoms that the terrorists attacked.

(END VIDEO CLIP)

OLBERMANN: Joining me now, as promised, is Russell Simmons, co-founder of the pioneering hip hop label Def-Jam, editor in chief of GlobalGrind.com, chairman of the Foundation for Ethnic Understanding. Pleasure to see you, sir.

RUSSELL SIMMONS, CO-FOUNDER DEF JAM: My pleasure.

OLBERMANN: Isn‘t this the simplest thing in the whole world? If we‘re denying freedom of speech—freedom of religion, if we‘re ignoring our own Constitution, especially at Ground Zero, aren‘t we, as the mayor said, doing the terrorist‘s job for them?

SIMMONS: It‘s nutty. It‘s so easy to figure out. And the fact that even a mainstream organizations like the ADL or some of the others who have weighed in and have been against building that kind of a statement from some in the Muslim community about not only tolerance, about love—and it‘s so obvious that we should not only allow it, we should support it.

And so, you know, I wrote a blog about it. I spoke—I‘m the chairman,, as you know, of the Foundation for Ethnic Understanding. And Rabbi Marc Schneier, who is the chairman of the world Jewish Congress, has worked with me in the capacity of the president. He and other rabbis are willing to support—not willing to, but excited to support this venture. It makes such great sense. Even if you were small, and I certainly don‘t think the rabbi or any of the other rabbis are small, you would know that the best way to fight anti-Semitism is to lift up the burden of Islamophobia.

And that‘s my neighborhood. I can‘t believe that so much Islamophobia is being promoted in my neighborhood. I live across the street from the World Trade. And so it‘s an obvious thing. If you‘re an American, you should understand what Mike Bloomberg said, I think.

OLBERMANN: What do you say to those people who are genuinely—either through misunderstood or lack of information, the ones who are afraid, the ones who are still traumatic stress disorder from 9/11 or lost relatives who don‘t understand and feel like they need to be angry about something? How do you deal with people that have a more legitimate fears of this?

SIMMONS: Well, I think with love. You have to educate people. I mean you can‘t—we‘re not going to go and start screaming and be as some are, the people who are protesting the building of the mosque. There is an ignorance. There is a lack of understanding or appreciation of the sameness that exists between the cousins. You know, I guess a lot of the Jewish organizations have weighed in. I just think it‘s a lack of understanding, you know, of what was told to them by Abraham and what is promoted by Mohammed and by Jesus Christ and by every prophet. It‘s pretty obvious what statement we would be making if we create a lie to keep them out. .

OLBERMANN: I got a Tweet from somebody about this last month. I know you will immediately pick up on the absurdity of this, because, as you said, this is your neighborhood. But it illustrates I think some of the things that are in play here, ignorance, which is sometimes willful. The question that I was asked was this: a mosque near Ground Zero; shouldn‘t there also be a church and synagogue? Trinity Church is still standing there, isn‘t it? Isn‘t everything still there?

SIMMONS: Yeah, there‘s the whole religious—the Jewish Tolerance Museum there. It‘s not what one has or the other one should have. It‘s just about religious freedom. This country was founded on that principle.

It‘s pretty simple. And I think that, you know, all of us who are

Americans should stick to our ideals. I think that part of the reasoning -

the way they were going to keep them out was to create a public lie to say this is—this ground is somehow—you know, we‘re going to redesign it. We‘re going to say—

OLBERMANN: Designation of the buildings as historical monuments?

SIMMONS: Yeah. But that‘s a lie. We were going to publicly say it was a lie in order to promote some Islamophobic ideas. That is far into our—how do we justify it a week later to our children? So it‘s a shock that we‘re in this space. It shows that we‘re not drawing—I haven‘t seen any—the growth of anti-semitism, the growth of Islamophobia, the—

I guess maybe poverty promoting some kind of ignorance. But we have work to do. We have work to do, in my opinion. So—

OLBERMANN: I know. I thank you for that and for your time tonight.

Russell Simmons, a pleasure to see you.

SIMMONS: Thank you.

OLBERMANN: Thank you. The latest in your efforts to help those for whom health care reform can‘t come quickly enough. Live to the free health care clinic for which your contributions paid in the nation‘s capital. Then I‘ll reprise of my Special Comment on Prop 8.

And when Rachael joins you at the top of the hour, her guests, the attorney who helmed the overturning of Prop 8, David Boies and Ted Olson.

(COMMERCIAL BREAK)

OLBERMANN: As we mentioned earlier in this news hour, yesterday in Missouri, that state voted three to one to invalidate the federal government‘s requirement that everyone purchase health insurance, even though legally a state can‘t nullify a federal law. For some this was still a huge victory. “To us,” said a backer, “Prop C symbolized everything,, the entire frustration in the country, how our government has misspent, how they haven‘t listened to the people. This measure, in general, encompassed all of that.” National spokesperson there.

Our number two story, the Tea Party has its symbolic victory in Missouri and millions of Americans still have no access to health care or simply can‘t afford it. Today in Washington, the National Association of Free Clinics hosted the fifth free clinic, funded entirely by you, our viewers. Inside the Walter E. Washington convention center, over 1,000 people were treated by hundreds of volunteers who provided everything from blood pressure checkups to eye exams.

Let‘s go to our friend Ed Schultz from “THE ED SHOW” here on MSNBC, who once again is at the site. Ed, good evening.

ED SCHULTZ, MSNBC ANCHOR: Good evening, Keith. Good to with be you.

Good to have you back. We missed you.

OLBERMANN: Thank you kindly, sir. Who did you meet today, Ed?

SCHULTZ: I met people who recently lost their jobs, that have never been in this situation before, that are scared, that are wondering is this the way it‘s going to be? How long is it going to be like this?

This story, Keith, cuts to your soul. You really see how lucky you are if you have health insurance, if you have a job, when you come in and see these Americans. And, Keith, the story I think today is as much outside as it is inside. This is the largest crowd that‘s been turned away. Over 500 people didn‘t get to see anybody today in this facility. And the ones that did waited three hours outside and an hour inside.

There is such a demand. Ten percent of the people that live here in the nation‘s capital, they don‘t have any insurance at all. Many of them haven‘t seen doctors for several years. And a lot of them were really concerned about follow-up. OK, we‘re getting care now. Where do I go next?

And there is really an undercurrent of fear for those who have lost their jobs, wondering how long this is going to last. I mean, the viewers of your show and MSNBC provided a real American heart felt service today.

OLBERMANN: Contrast that for a second. The attorney general of the state of Virginia, Mr. Cuccinelli, has been doing victory laps over this week‘s procedural win that allowed his lawsuit on behalf of the state, supposedly, to go forward against health care reform. Were there any Virginians there, by any chance, today?

SCHULTZ: Well, I didn‘t talk to any Virginians. I didn‘t ask them where they were from. I will tell you this, Keith, this crowd here today, they are more astute to what the battle is in Washington to advance health care reform in this country. Many of the folks that I spoke with today understand the battle, that there‘s actually a party in Washington, an organization that wants to repeal any kind of progress that we‘ve made. For these Americans here, nothing‘s really changed as of yet, even though we got the health care bill passed.

We have a long way to go in this country. And these are gut wrenching stories. There‘s the combination of people that—it‘s just not the health care. Many of these folks are on the verge of losing their homes because they‘ve been unemployed. They‘re on the verge of their credit being destroyed. And the timing for some people is a God send. There was one lady I met today. She came up to me and said she found a lump in her breast earlier this week. This was important to come to this clinic. She‘s going to get treatment on Friday.

So it‘s—what—who are we? I mean, I end up asking the moral question. What is America? Where are we? What are we doing? I think we‘re at a cross roads here in this country. I‘m sorry I get so wound up about it. It really cuts to your soul. It really does.

OLBERMANN: You and I both know this very well. What is the point of a nation if not to defend its citizens. everybody in this country will agree with. But the point is what is going on behind you is the defense of our citizenry as much as any bomb or any gun might happen to be. Ed Schultz at the free clinic, I‘m sorry I‘m out of time for tonight. Thank you for being there. We‘ll see you from New Orleans. Thank you, sir.

OLBERMANN: You can still support the two-day clinic in New Orleans, which coincides with the fifth anniversary of Hurricane Katrina, on August 31st and September 1st. For more details or to donate, go to FreeClinics.us. And once again, our eternal thanks.

Speaking of New Orleans, an update on the situation in the Gulf tonight. For the first time since April 20th, when Deepwater Horizon exploded, BP says it has been able to force crude oil back down towards its source. Success enough that minutes ago BP officials announced they have been given permission to begin forcing cement down the well as soon as tomorrow. Admiral Thad Allen giving his approval, so long as it does not delay the drilling of the relief well, only a few feet away as of yesterday.

Also today, the National Oceanic and Atmospheric Administration released a study claiming that only about one quarter of all the oil spilled remains in the Gulf, and that oil is deteriorating quickly. Some Gulf scientists calling the government report spin. Obviously, we will stay on top of this story.

OLBERMANN: There is one thing certainly worse than repeating yourself. It‘s shuffling the words you‘ve already chosen to speak and to speak for you gratuitously. Thus, tonight I will stand by what I said here on the night of November 10, 2008, after California voters passed Prop 8. These may seem like a question of law. This may seem like a question of same sex relationships.

It is, in truth, neither. It is, solely, a question of love.

(BEGIN VIDEOTAPE)

OLBERMANN: Finally tonight as promised, a Special Comment on the passage, last week, of Proposition Eight in California, which rescinded the right of same-sex couples to marry, and tilted the balance on this issue, from coast to coast.

Some parameters, as preface: this isn‘t about yelling, and this isn‘t about politics, and this isn‘t really just about Prop-8. And I don‘t have a personal investment in this: I‘m not gay, I had to strain to think of one member of even my very extended family who is, I have no personal stories of close friends or colleagues fighting the prejudice that still pervades their lives.

And yet to me this vote is horrible, horrible. Because this isn‘t about yelling, and this isn‘t about politics. This is about the human heart, and if that sounds corny, so be it.

If you voted for this Proposition or you support those who did or the sentiment they expressed, I have some questions, because, truly, I do not understand. Why does this matter to you? What is it to you? In a time of impermanence and fly-by-night relationships, these people over here want the same chance at permanence and happiness that is your option. They don‘t want to deny you yours. They don‘t want to take anything away from you. They want what you want, a chance to be a little less alone in the world.

Only now you are saying to them, no. You can‘t have it on these terms. Maybe something similar, if they behave, if they don‘t cause too much trouble. You‘ll even give them all the same legal rights, even as you‘re taking away the legal right, which they already had. A world around them still anchored in love and marriage, and you are saying, no, you can‘t marry. What if somebody passed a law that said you couldn‘t marry?

I keep hearing this term “re-defining” marriage. If this country hadn‘t re-defined marriage, black people still couldn‘t marry white people. Sixteen states had laws on the books which made that illegal in 1967.

The parents of the President-Elect of the United States could not have married in nearly one third of the states of the country their son grew up to lead. But it‘s worse than that. If this country had not “re-defined” marriage, some black people still couldn‘t marry other black people. It is one of the most overlooked and cruelest parts of our sad story of slavery: marriages were not legally recognized, if the people were slaves. Since slaves were property, they could not legally be husband and wife, nor mother and child.

Their marriage vows were different: not “Until Death, Do You Part,” but “Until Death or Distance, Do You Part.” Marriages among slaves were not legally recognized. You know, just like marriages today in California are not legally recognized, if the people are gay.

And uncountable in our history are the number of men and women forced by society into marrying the opposite sex, in sham marriages, or marriages of convenience, or just marriages of not knowing, centuries of men and women who have lived their lives in shame and unhappiness, and who have, through a lie to themselves or others, broken countless other lives, of spouses and children, all because we said a man could not marry another man, or a woman could not marry another woman.

The sanctity of marriage; how many marriages like that have there been and how on Earth do they increase the “sanctity” of marriage rather than render the term, meaningless?

What is this, to you? Nobody is asking you to embrace their expression of love. But don‘t you, as human beings, have to embrace that love?

The world is barren enough. It is stacked against love, and against hope, and against those very few and precious emotions that enable us, all of us, to go forward.

Your marriage only stands a 50-50 chance of lasting, no matter how much you feel and how hard you work. And here are people overjoyed at the prospect of just that chance, and that work, just for the hope of having that feeling. With so much hate in the world, with so much meaningless division, and people pitted against each other for no good reason, this is what your religion tells you to do?

With your experience of life and this world and all its sadness, this is what your conscience tells you to do? With your knowledge that life, with endless vigor, seems to tilt the playing field on which we all live, in favor of unhappiness and hate, this is what your heart tells you to do?

You want to sanctify marriage? You want to honor your God and the universal love you believe he represents? Then Spread happiness, this tiny, symbolic, semantical grain of happiness, then share it with all those who seek it. Quote me anything from your religious leader or book of choice telling you to stand against this. And then tell me how you can believe both that statement and another statement, another one which reads only “do unto others as you would have them do unto you.”

You are asked now, by your country, perhaps by your creator, to stand on one side or another. You are asked now to stand, not on a question of politics, not on a question of religion, not on a question of gay or straight. You are asked now to stand, on a question of love. All you need do is stand and let the tiny ember of love meet its own fate.

You don‘t have to help it. You don‘t have it applaud it. You don‘t have to fight for it. Just don‘t put it out. Just don‘t extinguish it. Because while it may at first look like that love is between two people you don‘t know and you don‘t understand and maybe you don‘t even want to know. That love is, in fact, the ember of your love for your fellow person, just because this is the only world we have and the other guy counts, too.

This is the second time I have found myself in ten days concluding by turning to, of all things, the closing plea for mercy by Clarence Darrow in a murder trial.

But what he said fits what is really at the heart of this:

He said, “I was reading last night of the aspiration of the old Persian poet, Omar-Khayyam,” This is what he told the judge. “It appealed to me as the highest that I can vision. I wish it was in my heart. I wish it was in the hearts of all: So I be written in the Book of Love; I do not care about that Book above. Erase my name, or write it as you will, So I be written in the Book of Love.”

(END VIDEOTAPE)

OLBERMANN: Did the judge think in those terms? Will the judges who will still rule think in those terms? Doubtful. Will the defense witnesses who saw their arguments dissolve when presented with the reality of their own baseless fears and superstitious beliefs—will they think in those terms? I think they already did over these last few months in the courtroom of a judge named Vaughn Walker.

And now with her guests, the attorneys who won the case, ladies and gentlemen, here is Rachel Maddow. Good evening, Rachel.

THIS IS A RUSH TRANSCRIPT. THIS COPY MAY NOT BE IN ITS FINAL FORM AND MAY BE UPDATED.